Some Thoughts on the Prosecution of Edward Snowden

John Yoo, the American lawyer responsible for the torture memo that allowed “enhanced interrogation techniques,” has written a column over at the National Review that is breathtaking in its silliness.

[Incidentally, Glenn Greenwald has actually written that Yoo could be tried for war crimes.]

“Edward Snowden should go to jail,” Yoo wrote, “as quickly and for as long as possible.”

Of course, that’s a pretty standard refrain among politicians and pundits. Sen. Dianne Feinstein (D-Cali.), who also happens to be the chairwoman of the Senate Intelligence Committee, told reporters “I don’t look at this as being a whistleblower. I think it’s an act of treason.”

The gut reaction to this is that journalists — if we can call Yoo that, even if he is writing in a political magazine — shouldn’t be spouting views that support that of the administration … something about the watchdog press. However, this isn’t the foundational issue here; rather, the problem is how this affects the principle that mob jury should be avoided.

Of course, Snowden has already opened himself up to trial-by-pundit, but Yoo’s column says two things that are so patently absurd that they can’t go unaddressed.

Yoo writes:

Snowden might be guilty of espionage, or even treason. If he is telling the truth that he leaked the existence of the PRISM program to inform the American public, then he should turn himself in. A trial would give him the opportunity to explain in public why he broke the law. If he is a spy — it is amazing that someone with such little education and background was given such extensive security clearance — he may well continue running abroad.

First of all, the offhanded suggestion that Snowden might be a spy is profoundly problematic. Not that it hadn’t occurred to the Obama administration — I’m sure it had — but it might not have occurred to everyone, more generally. It’s a dangerous claim, and quite frankly, one that shouldn’t be made so idly. To do so invites the sort of ill-informed bloviating that makes his second claim — “a trial would give him the opportunity to explain in public why he broke the law” — so absurd.

First of all, Snowden has explained why he broke the law, in an interview with Guardian reporters in Hong Kong. Admittedly, perhaps Yoo didn’t bother to read the story, but the fact remains, it has already been explained in a fairly forthright manner.

I’m not sure what other truths about this leak could be found in a trial. Especially when I can’t think of a good reason to think it would be much more than a show trial.

When you’ve dropped the accusation of espionage, is it conceivably possible to have a reasoned discussion about Snowden, and more precisely, is it possible to have a fair trial?

Yoo continues:

It is telling that he immediately fled to Hong Kong; one wonders whether he will offer his services and knowledge to the Chinese security services next.

On May 20, he boarded a flight to Hong Kong, where he has remained ever since. He chose the city because “they have a spirited commitment to free speech and the right of political dissent”, and because he believed that it was one of the few places in the world that both could and would resist the dictates of the US government.

Additionally, Snowden has explicitly said he didn’t want to harm the American public, and that he went through documents as precisely as he could; this was no document dump on the Internet, such as the disclosures by Wikileaks have been.

“I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest,” he said. “There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.”

The fact that Snowden went to reporters instead of going to the Chinese, or any other nation, frankly, makes Yoo’s claim profoundly silly. I could be proven wrong on this, but it is idle speculation, and not very helpful speculation, to make these suggestions without any evidence whatsoever.

That said, clearly I’m taking Snowden at his word here. He could be an extremely clever double agent, playing the reporters working on the story, while funnelling information to America’s enemies. Sure, it’s possible. But fleeing to Hong Kong isn’t particularly “telling.”

It’s a reasonable tactical decision — he could’ve fled to Canada, where we would have turned him over immediately. But instead, he fled to a place where, theoretically, the pressures of both the United States and the central Chinese government could be resisted.

I don’t think it’ll happen — and it doesn’t seem likely. But, the fact remains that Hong Kong is as good a choice as any.

However, Yoo does say one important thing at the end of his column:

So either the Justice Department will indict not just Snowden, but also the Postand Guardian reporters, or it will have been shown to have been untruthful to the courts in the Rosen case (which I think has become clear), in yet another demonstration of this president’s incompetence in managing the core functions of the executive branch or his willful abuse of its executive authorities.

Eric Holder’s Justice Department has made it clear that it could go after reporters if they expose state secrets. The inference that Yoo makes — while clarifying that he thinks in this case, the reporters are protected by the First Amendment — is that the Justice Department could go after Greenwaldfor publishing the story, if it follows the same logic they have previously.

Greenwald, for his part, has said this, in response to whether or not he had been contacted by law enforcement.

As an American citizen, I have every right, and even the obligation as a journalist to tell my fellow citizens and — and our readers what it is that the government is doing, that they don’t want people in the United States to know about. And I’m happy to talk to them at any time, and the attempt to intimidate journalists and sources with these constant threats of investigation aren’t going to work.